Flashcards in Cases Deck (37):
NSW Bar v Howen
Barrister knowingly misled AIRC by falsely stating delay in bringing unfair dismissal claim was due to client's stress. Comments were "most misleading". Actually due to barrister's delay in acting in instructions. Breach of duty of honesty and candour to Court and professional misconduct - r 23 overriding duty and r 24 misleading court, failure advance clients interests. Struck off in (No 2)
Glissan advised client to settle as. See was weak, put additional pressure on him on day of hearing and settled.
Guilty of USPM. While counsel has a duty when regards case as long, unwinnable and expensive to put as strongly as possible to client that should settle, determination to settle should not directly or indirectly override client's will. Should advice not accepted, return brief. Overbore instructions here in that changed due to continued pressure of B in conditions of extreme stress (impression conveyed client would have to conduct it himself if no settle). See also r 35 "in other words, overbore the client's will"
Kaye v Woods (No 2)
Question whether privilege waived due to misconduct (EA s 125 - CPP). 1D and 2D were cooperating regarding medical expert evidence. Employed solicitor for 1D told solicitor for 2D that additional report not obtained from expert. Shortly before trial, served additional report. Partner described failure to serve earlier as oversight in letter, as did barrister in openings (in presence of instructing solicitor). Partner swore affidavit that implied (through omission of information) she had limited involvement and failure to serve was an oversight. Court held report had been obtained before conversation with 2D, decision not to serve earlier was forensic solicitor statements were misleading to 2D and (later) the Court.
Use with Mullins
– D was a solicitor acting for himself in private capacity. Sued by deputy tax commissioner as a self-represented litigant. DTC accidentally claimed only $25k of $250k tax debt. D knew of mistake & took advantage of it by encouraging DTC to enter into settlement for that amount. Professional misconduct. UPC may include private conduct. Here he was using knowledge and skill so f LP. Improper use of court process. Using processes of court for collateral advantage inappropriate. Deliberately took advantage of the error for his own personal and tactical advantage. "Sharp tactics" and "slick behaviour" brought "profession into disrepute.
D was a barrister acting in mediation. He relied on expert evidence, which made assumptions the barrister knew to be false about his client’s life expectancy. He had consulted SC & conducted research. But this deception was professional misconduct. Fraudulent deception departure from stand of conduct expect from LP. Nothing suggest further risk of offending.
Obligations to opponent rules, and court because includes mediation
Kelly v London Transport
• Kelly, employee of London Transport, made bogus claim alleging whole range of complaints arose as a result of trivial injury he sustained; legal aid obtained for case
• several medical experts reports prepared, one of which was changed by specialist at request of solicitors
Held: solicitors should be called before court to determine whether they should pay personally costs incurred by London Transport due to failure in their duties
• solicitors and counsel acting for legally-aided clients owe duties to court and to other side and can be made to pay other side’s costs if they fail in this; cannot claim immunity from suit which avails them only in regard to their own client
• duty is to ensure claim well-founded, not to refuse reasonable settlement offers and not incur unnecessary expenditure knowing they will be paid by legal aid
• must not run up costs with endless medical reports, and must not ask medical expert to change his report so as to favour client or conceal things that may be against him; they must not “settle” the evidence of medical experts as in Whitehouse
Barrister struck off the roll as not a fit & proper person, due to professional misconduct. Barrister pursued prosecution of D (solicitor) at behest of client, in order to intimidate D into ceasing to act for client’s wife in separate proceedings. In opening address Barrister savagely attacked D’s reputation without any evidentiary basis: alleged fraud / perjury etc. He knew that he had no evidence to support the allegations.
Lying to judge a breach of a fundamental rule governing barrister
Disbarment is not a punitive measure but a protective measure aimed at protecting public interest in admin of justice and professional interest in not abiding the privilege so as not to lose it. Also refer bar rules.
Barrister guilty of unsatisfactory professional conduct. When addressing the Court he made statements that were discourteous / disrespectful & had the potential to bring the Court into disrepute. E.g. Court is ‘star chamber’ & is ‘oppressive’. When addressing the Court he made statements which attacked the integrity / displayed lack of professional courtesy to / inflamed jury against the Crown Prosecutor. E.g. continuously saying prosecutor was ‘improper’. Argued not UPM as not amount to failure to act with competence and diligence and contempt could deal with. Held: failure to respect court contrary to public expectations can be lack of competence. Even if not, categories not closed. Contempt possibility irrelevant. Objection improper if no factual basis or offensive.
Reasonable expectation of public that appropriate respect to the court
Rudeness falling short of contempt can be UCP
miscarriage of justice because of defence counsel conduct during trial. Counsel was gratuitously rude to witnesses, to the prosecutor and to the judge. E.g. said judge was biased / could not give a fair trial / that the trial was a farce / that judge & prosecutor colluding to secure conviction / that police always manufacture evidence / that witness ‘lying through her teeth’ etc. held miscarriage of justice - enough incidents in juries presence that nature and frequency likely to lead jury to doubt worth of listening to anything defence counsel said
Just because rude does not mean miscarriage of justice
Barrister represented D. D admitted to Barrister that he was present at robbery. Despite this knowledge, in breach of Bar rules, barrister led evidence from D and from 4 alibi witnesses (knowing it to be false) that D was at home at time of robbery. This was professional misconduct. (no finding vis remaining on roll, because no submissions on this) Separately, Barrister should have given evidence because issues that were peculiarly w/in his knowledge
Personal belief about guilt should not effect how you run the case.
Kneebone convicted of sexually assaulting his stepdaughter in her room; stepdaughter claimed that, while she was being assaulted, her mother opened door to room and saw
• mother denied having seen assault; prosecutor did not interview her, and did not call her on basis that her evidence would be unreliable; defence did not call her either
Held: conviction set aside; miscarriage of justice due to fact mother was not called
• principles stated in Apostilides v The Queen (1984) 154 CLR 563
1. prosecutor alone responsible for deciding which witnesses Crown will call
2. judge may ask prosecutor reasons for declining to call a witness
3. judge can invite prosecutor to reconsider, but cannot direct him to call witness
4. judge may make comment to jury as to effect of Crown failure to call witness
5. save in most exceptional circumstances, judge should not himself call witness
6. conviction will be set aside on account of Crown failure to call witness only where this gave rise to miscarriage of justice
• Bar Rules 62 & 66B cited, and further principles mentioned:
1. general obligation of Crown prosecutor is to ensure Crown case presented with fairness to the accused
2. prosecutor should call all apparently credible witnesses available whose evidence is necessary to unfold the narrative and give a complete account of the events, and includes witnesses notwithstanding that they give accounts inconsistent with Crown case
3. prosecutor need not call material witness if not reliable or trustworthy or otherwise incapable of belief; however, there must be identifiable factors pointing to unreliability of witness prosecutor should therefore take proper steps, including where necessary interviewing witness, to form opinion on this
4. if prosecutor does not intend to lead evidence from witness whom defence wishes to be called, prosecutor may call witness so he may be cross-examined
5. note s 38 EA can be used where witness’s evidence unfavourable to Crown
• here, Crown did not explain why mother’s evidence unreliable, or even interview her
No miscarriage of justice, but Court found that Crown Prosecutor had breached rule 85. Accused was convicted of murder of his parents in brutal stabbing. CCA overturned the conviction, but not on grounds of prosecutor misconduct. Misconduct was this:
1) she asked questions that were irrelevant & inappropriate – e.g. about whether D could recall brother’s DOB 15 years after he died apparently being relevant to nature of their relationship in 1993
2) she asked questions / made suggestions that were not based on evidence – e.g. suggesting that brother could not have killed parents because he was down & ‘needed them more than ever’
3) she used words that were inflammatory & inappropriate in XXN & in address to the jury – e.g. ‘did you whisper into your mother’s dead or dying ear’
4) she made submissions w/out reasonable foundation in evidence – e.g. about D’s ‘disdain’ for parents just because of how he described father’s job
Question was whether Crown should have disclosed running sheets recording communications between police officers. Crown submitted not disclosable - merely compilation of information and enormous task to disclose every document even where itself the doc was not evidence. Crown did not know his defence was going to be he was not intending to import drugs but rip off people willing to pay for them. 1) inequality of resources between Crown & accused is ameliorated by obligation on Crown to make available all material that may prove helpful to D
2) duty of disclosure by Crown should not be approached narrowly – it includes disclosing material even if defence may be able to use it to tailor its evidence to conform w information in the Crown’s possession
3) duty not limited to admissible evidence
4) duty extends to statements of witnesses not called by Crown, not just their identity
5) duty does not extend to disclosing information going only to credibility of D’s witnesses (as opposed to Crown witnesses)
6) Crown must disclose material documents which can be seen, on a sensible appraisal by the Crown:
a) to be possibly relevant to an issue (broad interpretation)
b) to possibly raise a new issue
c) to hold out a real prospect of providing a lead as to such evidence (ie not limited to admissible)
No onus on defender to demonstrate forensic purpose in relation to materi said to be subject to duty of disclosure
Wrt facts, even if info in sheets disclosed elsewhere, not basis for not disclosing. If they merely repeat second or third hand information would not fall wkthin categories. Here arguable either way and not necessary to resolve. Test for fresh evidence less demanding where breach of duty of disclosure? But still no real chance jury would have acquitted if material available
murder of Caroline Byrne; trial of Wood for her murder – in closing address, Crown purported to reverse onus of proof generally & in respect of particular issues. Crown put series of questions to jury that D’ had to answer’. Crown conduct caused trial to miscarry, occasioning a miscarriage of justice.
1) the Crown has a duty to present a case fairly, completely & with fairness to D
2) Crown is entitled to firmly & vigorously urge the Crown view about a particular issue & to test & if necessary attack D’s case – but he must always do so temperately & with restraint
3) it is impermissible for the Crown to embark on a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion
4) a number of features might render Crown submissions impermissible:
a) submission to jury based on material not in evidence
b) intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury
c) comments which belittle or ridicule any part of D’s case
d) impugning the credit of a W, where they did not have an opportunity to respond to attack on credit
e) conveying to the jury the Crown’s own opinion
f) where submissions are made which contain matters that D is asked to explain, the onus of proof is inappropriately reversed
5) asking questions & inviting the jury to consider whether D had provided a ‘satisfactory answer’ to them was impermissible
6) some questions reversed the onus of proof by calling for an explanation from D, when it was for Crown to explain
7) other questions invited the jury to speculate
8) some questions unfairly invited speculation intended to smear D’s character, without being based on any evidence (e.g. as to insider trading)
9) prosecutor impermissibly gave his opinion in relation to emotional impact of ‘diving’ from Gap – e.g. ‘imagine how it would feel / how scared you would be / could not jump far’
10) Crown made submissions w/out evidence – e.g. ‘Caroline was depressed because she wanted out of the relationship’ – but there was no evidence of why she was depressed – this was speculative & capable of seriously misleading the jury
11) prosecutor expressed his own opinion of how people behave when suicidal – and opinion contrary to expert evidence in case
12) prosecutor encouraged jury to accept evidence for a ‘spear throw’ for which there was no scientific basis saying ‘isn’t it just commonsense?’
13) prosecutor breached duty of fairness & detachment by misrepresenting evidence
Barrister wrongly accepted brief to appear & wrongly returned brief to appear. Barrister already committed to day of hearing in part-heard AVO matter. Barrister then accepted hearing in Family Law matter, which clashed with AVO matter. Barrister waited three weeks to return brief, & did so only two days before hearing & without obtaining fully informed consent. Misled bar association about compliance with rules. Professional misconduct but reprimand only - good conduct, character, costs order already made against him
Hunter & Sara
miscarriage of justice in criminal trial because of defence counsel incompetence. Barrister jointly represented both accused. Did not consider whether separate representation required. Their cases were so different & their interests potentially adverse such that separate representation was necessary. miscarriage of justice in criminal trial because of defence counsel incompetence. Barrister jointly represented both accused. Did not consider whether separate representation required. Their cases were so different & their interests potentially adverse such that separate representation was necessary.
Incompetence of counsel can give rise to miscarriage of justice
Atwells v Jackson Lalic
Solicitors advised to settle. Settlement was effected through consent orders. Client sued for negligence and solicitor relied on advocates immunity. HCA held not covered by it. AI limited to conduct which contributes to judicial determination. AI in respect of participation I judicial process extends to protect solicitor involved in conduct of litigation. Extends to work done out of court which leads to a decision affecting the conduct of the case in Court - where can be said to be a preliminary decision affecting the way the case is to be conducted when it comes to a hearing.
Consented to orders that removed from roll of lawyers at not fit and proper, guilty for professional misconduct. Surrendered practising certificate but continued I practice as a barrister (accepted briefs, entered into costs agreements, gave written advice, appeared at directions hearing, conferred with expert witnesses). received fees for work, represented and advertised he was entitled to engage in legal practice, mislead the Bar Association. Breached s 14,15 LPA.
Declarations and orders made.
Think about obligations to the Court hold out to be barrister
Costigan (1) gave inadequate costs disclosure to two direct access clients and received moneyed in advance of doing the work and applied to personal expenses before rendering a bill, (2) represented party in local court when big qualified to practice (3) failed to notify if show cause events. Professional misconduct, removed from roll, not a person of good fame and character, costs
Whether fit and proper person determined at time of hearing: A Solicitor v Law Society
Applying funds to personal needs very serious departure from conduct expected of barrister. Not an isolated incident. PM and would be regarded as disgraceful and dishonourable by peers.
Appearing without practising certificate professional misconduct
Failing to notify of show cause events UPC but would not itself justify orders
Z involved in drunken fight in pub. Police officer said he should go to hospital and offered to drive. Z went off in car and collided with motorcyclist, killing. Convicted and imprisoned of manslaughter - alleged drunk. He claimed concussed. SC struck off in basis of fact of conviction and sentencing - Court should not go behind.
Held: fit and proper person but suspended for person of imprisonment. . Conviction and sentence was of great significance to whether fit and proper but not decisive. Have to examine facts and circumstances lying behind conviction. Fullahsr and Taylor focused on defects in trial. Kitto - isolated incident not warranting conclusion about general behaviour or inherent qualities.
Did not lodge tax return for 38 years, no evidence could not have.
Professional misconduct and not fit and proper person to be on the role.
Honesty and integrity required of legal profession: clients must feels secure, fellow practitioners depend on word, judiciary confidence in those before them and public must have confidence in profession because of role in administration of justice. "Rank hypocrisy" from him in advocating other people should perfect their legal obligations while systematically refusing to perform his own.
In inherent jurisdiction, professional misconduct extends to acts not occurring directly in the course of practice where:
(1) acts are sufficiently closely connected with practice
(2) conduct manifests presence or absence of qualities which are incompatible with or required for legal practice - overlaps with fit and proper person (but note A Solicitor)
Attwells v Jackson Lalic Lawyers
1) Advocate’s immunity from suit is confined to the conduct of the advocate, which contributes to a judicial determination. It does not extend to acts or advice that do not move the litigation towards a determination by a court, including negligent advice, which leads to settlement by agreement between the parties. That conclusion is not altered where the parties’ agreement is embodied in consent orders.
2) Advocate’s immunity from suit in respect of his participation in the judicial process extends to protect a solicitor involved in the conduct of litigation in Court. (D’Orta-Ekanaike)
3) Advocate’s immunity extends to work done out of Court, which leads to a decision affecting the conduct of the case in Court. The protection exists only where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing.
• Solicitors advised their client to settle proceedings. That settlement was embodied in consent orders. Client sued solicitor for negligence in relation to advice to settle on those terms. Issue was whether that advice was protected by advocate’s immunity. HCA held that it was not.
• The central justification for advocate’s immunity is the principle that controversies, once quelled, are not to be reopened except in a few narrowly defined cases. Collateral attacks would undermine the administration of justice. Because of that rationale, the immunity does not extend to acts or advice of an advocate, which do not move the litigation toward determination by a Court. In particular, immunity does not extend to advice to settle.
NSW Bar Assoc v Costigan
Costigan engaged in the following conduct: (1) inadequate costs disclosure to two direct access clients and received moneys from those clients in advance of doing the work, and applied those funds to personal expenses before he rendered a bill to them; (2) represented a party in Local Court when he was not qualified to practice; (3) failed to notify the Council of a number of ‘show cause’ events.
1) in exercising its inherent jurisdiction to discipline lawyers, the Court is not bound by any statutory definition of ‘professional misconduct’ – rather, it has the capacity to determine & act on the basis of unfitness where appropriate, w/out the need to stretch the concept of professional misconduct beyond conduct having some real & substantial connection with professional practice
2) professional misconduct at common law connotes conduct which would reasonably be regarded as disgraceful or dishonourable by one’s peers
3) trust money – Costigan breached obligations regarding receipt of trust money by failing to deposit it into an account in connection to his law practice – this is reckless disregard of his professional obligations; applying those funds to meet his personal expenses was dishonest; these were not isolated incidents – this conduct amounted to professional misconduct under statute & at common law
4) practising w/out practicing certificate – on two occasions, Costigan appeared as a barrister when he had no entitlement to do so; this conduct misled the Court, the opponent & his own client – this conduct was deliberate & is the antithesis of the requirements of candour & honesty expected of members of the legal profession – it demonstrated that Costigan lacked the qualities of character & trust which are the necessary attributes of a person entrusted to be a legal practitioner. this alone amounts to professional misconduct at common law & under statute – it was dishonourable & disgraceful
Flower and Hart v White
Solicitor had to make independent assessment of whether proceedings should be instituted especially where instituted without investigation of facts or full brief. Meadows purpose was to obtain temporary bargaining stance for client
Nature of the trust is such that the barrister must be trusted working unsupervised to do what is right
Question about when possession had been taken. Gave a document over to him subsequent proceedings. Release of confidential information, justified only in exceptional circumstances. Did not exist here. No penalty as judgment impaired by lack of sleep having not eaten and not having taken meds, wife just had baby. Thought was doing the right thing. Note sections form a quick view do not agonise over PM or UPM.
Swore a affidavit deliberately false saying he adjournment required because commitment. Said solicitor drafted and had not read. Practising certificate cancelled for both r Asians.
Both solicitor and barrister overcharging systemically and recommending settlements based on fees. Clients rely on the "standards as well as the skills" of barrister. Suspended for two years. On appeal disbarred. PM.
Drunk in court. (Drinking night before). Getting help. UPC
Overcharging can constitute PM. Worse where client is vulnerable
provided town planning advice quasi legal for wife's company. Issued invoices. Order restraining. Declaration. Goes to what barristers work is
Overcharging by 66%. Professional misconduct public reprimand and cost. "Disgraceful and dishonourable". Allenson test "gross overcharging" may constitute PMC
Pleaded guilty of indecent assailant against children. Children of partner.
Bankrupt owing large sums to ATO. Bar association determined not fit to hold practising certificate not fit and proper person. Held: it is the circumstances of the commission of the offence/bankruptcy that must show not fit and proper.
Put with Ziems contrast cummins
In possession of guns in public place and moderately affected by alcohol. Gun observed in pocket. Suffering depression and father died. Not a fit and proper person and PM. Took matters into own hands with respect to threats - disrespect of law and flouting. Took into account mitigating factors a reprimand, firm, legal ed
Prothonotary v P
P used heroin and addicted to cocaine/ carried drugs in plane for partner.
question of present fitness not time of conduct